97 Ala. 539 | Ala. | 1892
— The undisputed facts of this case may be briefly stated, as follows:
On the 12th February, 1890, W. B. Yail, who was a grocery and wine merchant, in Mobile, Alabama, was in failing and insolvent circumstances. Before that date he had conveyed all his property not exempt — other than his book accounts and demands standing upon his books — to some of his creditors, not including the plaintiffs and defendants, in bona fide payment of their real and honest and antecedent claims against him. On that date, in consideration of sums owing by him to them, in different amounts, aggregating, with interest, $8,268.76, as was evidenced by their respective obligations against him, and “for the purpose of making payment of said indebtedness” to them, said Yail, by his instrument in writing, duly executed by him, sold, conveyed, and assigned to the claimants. — appellants here — all of his book accounts and demands, of every kind whatsoever, standing upon the books of the business theretofore carried on by him as a merchant.
The debts of claimants against him were admitted to be real and bona fide. The book accounts so sold and conveyed amounted to about $12,000, and the evidence showed they were, really, worth between six and $7,000. The claimants, each, knew nothing of Yail’s insolvency, but supposed him to be a prosperous merchant. He executed this conveyance of his own accord, and, at the time he signed it, neither of claimants knew anything about it. The books were delivered
Flash, Preston & Co., the appellees, on the 10th July, 1890, recovered against Vail, in the City Court of Mobile, a judgment for $572.50, on an undisputed debt, which originated before that date.
To collect that judgment, they sued out a writ of attachment against Vail, which they caused to be executed by summoning C. Burke, amongst others, to appear and answer what he was indebted to said Vail. He appeared and answered, and from the suggestion he made of a claim by these claimants, they were brought in and propounded their claim, to the amount due by garnishee to Vail. Issue was made up, the claim suit tried, on the evidence as substantially set out above. The court, at the request of the plaintiffs below, charged the jury, if they believed the evidence, to find for the plaintiff, and refused to charge, that if they believed the evidence they must find for the claimants. The claimants excepted to the charge given, and to the re
The subjects of conveyances by insolvent debtors to pay antecedent debts, has been so frequently considered, and is so well settled by this court, we have no disposition to discuss it further in this case.
The result of our decisions is, that “if the debt is honestly due and not materially less than the value of the property conveyed, and no interest or benefit is reserved to the debtor, the conveyance is lawful, and is not affected by the existence even of a fraudulent intent on the part of one or both of the parties thereto. In such a case, inqiliry should be directed to the bona fidea of the debt; the sxifficiency of the consideration, and a .reservation of benefit to the debtor.” “If the transaction is not assailable on one of these grounds, fraud has no room for operation.” — Pollock v. Meyer, 96 Ala. 172. This principle is true, if property is sold in payment pro tanto of such debts.— Ullman v. Myrick, 93 Ala. 536.
In this case, on the evidence adduced, the bona fides of the debts of appellants is admitted. The property sold is shown, without contradiction, to be far less in value than these debts, and it no where appears that there is the slightest benefit reserved to the seller.
The fact that Yail made the conveyance unsolicited by appellants, can make no difference, provided they accepted it, which is established beyond dispute. Nor can it operate against the validity of the conveyance, that appellants accepted it, in payment of their debts, to the extent only that the claims when collected and applied, pro rata, would go, and that they retained their notes as valid debts against Yail for the balance. That part of the transaction seems to be very fair, and rebuts all idea of a reservation of interest in or a bargain for an advantage in any way to Yail.
The transaction, it is contended, was a mere pledge or mortgage to secure the claims of appellants. Such an intention of the parties can not be derived from the evidence, and the witnesses themselves rebut such a conclusion. Where there is an agreed price for property in consideration of which there is an absolute transfer of title and possession to the vendee, the transaction is a sale. — 18 Eng. & Amer. Encyc. of Law, 590, 593.
Reversed and remanded.